People v. Briseno CA4/1

STATEMENT OF FACTS

The record does not contain a transcript of the 1997 trial. However, the parties

have utilized the probation officer's report from the 1997 conviction without objection.

We will take only a small portion of that report for our factual summary, since we are

only concerned with information regarding whether, in addition to possessing a firearm,

Briseno was personally armed with one.

This case arises from a stop of a vehicle by police as part of a drug investigation.

During the stop Briseno was patted down by an officer. During the pat-down, a small,

chrome plated .32 caliber firearm fell to the ground.

During his conversation with the probation officer, Briseno admitted he had

possession of the gun. He said it had been passed to him seconds before the stop as he

was supposed to throw it away.

DISCUSSION

Briseno contends the trial court erred in finding him ineligible for resentencing

under the Act. He was convicted of possession of a firearm, not of being armed. Thus,

he claims the record does not support a finding of ineligibility. In any event, he contends

he was entitled to a full trial on the issue. As Briseno recognizes, both questions…